Rudd v. Geneva County Commission et al (MAG2)

Filing 47

MEMORANDUM OPINION AND ORDER granting 39 MOTION for Summary Judgment filed by Geneva County Commission and granting 41 MOTION for Summary Judgment filed by Gregg Ward. Signed by Honorable William Keith Watkins on 12/18/2008. (cc, )

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION D E N N IS RUDD, P l a i n t if f , v. G E N E V A COUNTY COMMISSION, et al., D e f e n d a n ts . ) ) ) ) CASE NO. 1:06-CV-233-WKW ) ) ) ) ) MEMORANDUM OPINION AND ORDER B e f o re the court are two motions for summary judgment. One was filed by Defendant G e n e v a County Commission (Doc. # 39), and the other was filed by Defendant Sheriff Greg W a rd (Doc. # 41).1 The motions are fully briefed (Docs. # 40, 42) and are accompanied by e v id e n c e (Doc. # 43), including deposition transcripts and other exhibits. Although Plaintiff D en n is Rudd ("Mr. Rudd") failed to respond to the motions, notwithstanding the court's O rd e r directing him to do so (Doc. # 26), the court conducted an independent review of the re c o rd in light of the familiar standard governing summary judgment. Having done so, the co u rt finds that the material facts are undisputed and that Defendants' motions for summary ju d g m e n t are due to be granted. The court refers to Defendants individually as the "Commission" and "Sheriff Ward" and collectively as "Defendants." 1 I . JURISDICTION The court properly exercises subject matter jurisdiction over this action pursuant to 2 8 U.S.C. 1331 (federal question) and 28 U.S.C. 1343 (civil rights). Personal jurisdiction a n d venue are not contested, and the court finds adequate allegations of both. I I . STANDARD OF REVIEW " [ T ]h e district court cannot base the entry of summary judgment on the mere fact that th e motion was unopposed, but, rather, must consider the merits of the motion." United S ta te s v. One Piece of Property, 5800 S.W. 4th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th C ir. 2004). The court, however, "need not sua sponte review all of the evidentiary materials o n file at the time the motion is granted, but must ensure that the motion itself is supported b y evidentiary materials." Id. Summary judgment should be granted only "if the pleadings, the discovery and d is c lo s u re materials on file, and any affidavits show that there is no genuine issue as to any m a te ria l fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 5 6 (c ). Under Rule 56, the moving party "always bears the initial responsibility of informing th e district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1 9 8 6 ). The movant can meet this burden by presenting evidence showing there is no g e n u in e issue of material fact, or by showing that the nonmoving party has failed to present e v id e n c e in support of some element of its case on which it bears the ultimate burden of p ro o f . Id. at 322-23. "[T]he court must view all evidence and make all reasonable inferences 2 i n favor of the party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 9 2 1 (11th Cir. 1995). Once the moving party has met its burden, "an opposing party may not rely merely on a lle g a tio n s or denials in its own pleading; rather, its response must by affidavits or as o th e rw is e provided in this rule set out specific facts showing a genuine issue for trial." F ed . R. Civ. P. 56(e)(2). To avoid summary judgment, the nonmoving party "must do more th a n simply show that there is some metaphysical doubt as to the material facts." Matsushita E le c . Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A genuine factual dispute e x is ts if "a reasonable jury could return a verdict for the non-moving party." Damon v. F le m in g Supermarkets, Inc., 196 F.3d 1354, 1358 (11th Cir. 1999) (internal quotation marks a n d citation omitted). III. FACTS AND PROCEDURAL HISTORY C o n stru in g the evidence in the light most favorable to Mr. Rudd, the material facts are as follows. Mr. Rudd was incarcerated at the Geneva County Jail ("Jail"), beginning January 6 , 2005, after his arrest on charges of manufacturing and possessing methamphetamine. This la w s u it focuses on the conditions of Mr. Rudd's confinement, a staph infection Mr. Rudd c o n tra c te d , the medical treatment he received while in the Jail, and an attack he endured from h is cell mates. The Commission is sued as the governmental entity responsible under state law for adequately funding and maintaining the Jail, and Sheriff Ward is sued as the party re s p o n s ib le under state law for the Jail's general supervision and control. 3 D u r in g Mr. Rudd's incarceration, there were more inmates than permanent bunks; c o n se q u e n tly, Mr. Rudd and two other inmates had beds on the floor,2 and his bed was next to "a solid steel rusty wall." (Pl. Dep. at 54, 61 (Defs. Ex. D); see also Pl. Dep. at 44.) On J a n u a ry 8, 2005 (his second day of incarceration), having complained of a fever, Mr. Rudd w a s taken to a hospital emergency room, where he was diagnosed with a staph infection. (Pl. D ep . at 22-23, 26, 50, 54-55; Prisoner Activity Sheet (Defs. Ex. F).) After this diagnosis, Mr. R u d d was permitted to sign his own bond, so that he could be released and obtain further care a t a Veteran Administration's hospital. (Ward Dep. at 35 (Defs. Ex. A); Pl. Dep. at 23-24, 5 7 -5 8 , 77; Jan. 6, 2005 Booking Sheet (Defs. Ex. E); Prisoner Activity Sheet.) Mr. Rudd re m a in e d hospitalized for at least two weeks before being discharged at which time he re m a in e d at home. (Pl. Dep. at 59, 78.) On February 10, 2005, Mr. Rudd failed to appear in court on the methamphetamine c h a rg e s and, thus, again found himself incarcerated in the Geneva County Jail. (Prisoner A c tiv ity Sheet at 2; Feb. 10, 2005 Booking Sheet at 1 (Defs. Ex. G).) Mr. Rudd's cell mates to ld him, "We don't want you in here" because "you've got staph infection." 3 (Pl. Dep. at 35.) Mr. Rudd's precise sleeping situation is unclear from the record, but it appears that Mr. Rudd is complaining that, at least for a time, he had to sleep on a mattress on the floor, rather than in one of the permanent bunks. His testimony, though, is conflicting. (See, e.g., Pl. Dep. at 37 (testifying that he slept in a "bunk" and stored a box with his paperwork underneath his "bunk"); see also Pl. Dep. at 44.) There is no evidence that Mr. Rudd still was suffering from a staph infection during his second stay at the Jail. 3 2 4 O n February 24, 2005, Sheriff Ward met with Mr. Rudd, who showed him a letter,4 b u t refused to move him to a different cell for two reasons.5 First, Sheriff Ward said there w a s "nowhere else to put" him. (Pl. Dep. at 36.) Second, he expressed his belief, based upon th e nonviolent histories of the offending cell mates, that the threats were harmless.6 (Pl. Dep. at 36.) The next day, though, one of these cell mates attacked Mr. Rudd, and two others jo in e d in the attack by "jump[ing] on [him]." (Pl. Dep. at 41, 48-49; Ward Dep. at 36-37.) It is undisputed that Mr. Rudd was "severely beaten" (Ward Summ. J. Br. at 4 (Doc. # 42)) a n d was transported to the emergency room and hospitalized for two weeks. (Pl. Dep. a t 48-49, 51.) After his discharge, Mr. Rudd was returned to the Jail and placed in a cell by h im s e lf , and his medications were given to him regularly as prescribed. (Pl. Dep. at 52, 76.) S e e k in g , among other relief, at least "one million dollars" for the staph infection and th e injuries he sustained when his cell mates attacked him (Compl. 14), Mr. Rudd filed this s u it against Sheriff Ward, individually and in his official capacity, and against the C o m m is s io n . As alleged in the complaint, Mr. Rudd attributes the onset of his staph Mr. Rudd says that the cell mates, who were complaining about his staph infection, wrote and signed a letter stating that they would attack Mr. Rudd if Sheriff Ward did not move him to a different cell. Mr. Rudd, however, has not produced the letter because he says that it was stolen. (Pl. Dep. at 37.) The content of letter is hearsay, as discussed infra, and may not be considered in the analysis of Mr. Rudd's claims. The court notes that Sheriff Ward denies that he "received any complaints" concerning threats made to Mr. Rudd by other inmates or any requests from Mr. Rudd to move to a different cell. (Ward Dep. at 57; see also Ward Dep. at 57.) For present purposes, the court accepts Mr. Rudd's testimony that he had a conversation with Sheriff Ward about moving to a different cell. According to Mr. Rudd, Sheriff Ward told him that he (Sheriff Ward) knew these inmates' histories because they had been incarcerated for a "long time." (Pl. Dep. at 36.) 6 5 4 5 in f e c tio n to two causes: "unkempt and foul jail conditions" (Compl. 5; see also Compl. 9), and the "brutal[] beat[ing]" he suffered from his cell mates. (Compl., Ex. A.) Also, he a v e rs that staph infections were "prevalent in the jail." (Compl. 9.) Mr. Rudd further a lle g e s that the attack was caused by "overcrowding of cells" and a "lack of proper f a c ilities ." (Compl. 22; see also Compl. 17; Pl. Dep. at 29-30 (testifying that he seeks to re c o v er for the attack, the staph infection and overcrowding).) Moreover, he contends that h e was "not provided proper medical attention and treatment following [the] assault." (C o m p l. 9.) In the complaint, the statutory and constitutional bases for imposing liability against D e f en d a n ts are laid out in kitchen-sink approach, with Mr. Rudd citing 42 U.S.C. 1983, 42 U .S .C . 1985, and the Fourth, Fifth, Eighth and Seventeenth Amendments to the United S t ate s Constitution. However, in a prior Memorandum Opinion and Order, the court n arro w ed the claims upon Defendants' motions to dismiss. The court dismissed Mr. Rudd's 1983 claims against the Commission under the Fourth, Fifth, Fourteenth and Seventeenth A m en d m en ts. (Sept. 10, 2007 Op. at 7 (Doc. # 20).) The court also dismissed Mr. Rudd's 1983 Eighth Amendment claims against the Commission to the extent that they were based o n a theory of respondeat superior.7 (Sept. 10, 2007 Op. at 7.) The court declined to dismiss The court notes that, at the motion to dismiss stage, Defendants analyzed this case as if Mr. Rudd were a convicted inmate, rather than a pretrial detainee (see Sept. 10, 2007 Op. at 7 n.4) and, thus, applied the Eighth Amendment's prohibition against cruel and unusual punishment to Mr. Rudd's claims. (See Sept. 10, 2007 Op. at 7 n.4.) Mr. Rudd did not offer a contrary argument. (See, e.g., Compl. 4 (alleging that he "was lawfully detained due to serving a sentence for prior convictions"); Sept. 10, 2007 Op. at 7.) There now is testimony suggesting that Mr. Rudd was a pretrial detainee. (See, e.g., Pl. Dep. at 19-20, 22-23.) The Fourteenth Amendment's guarantee of due process, not the Eighth Amendment, applies to pretrial detainees. See Tittle v. Jefferson County Comm'n, 10 F.3d 1535, 1539 n.3 (11th Cir. 1994). In their summary judgment briefs, however, Defendants have not raised the issue of Mr. Rudd's status, but continue to analyze the claims under the Eighth Amendment standard. There is authority that, as concerns claims arising from an inmate's incarceration, the standard is the same under both 7 6 th e Eighth Amendment claims in their entirety because Mr. Rudd had alleged issues arguably re la te d to the building and maintenance of an adequate Jail, namely, that the overcrowded c e lls and "lack of proper facilities" caused his injuries. (Sept. 10, 2007 Op. at 8.) The court, th e re f o r e , could not "say as a matter of law" at the motion to dismiss stage "that the C o m m iss io n did not fail to build and maintain a Jail and that such a failure, if ultimately p ro v e d , did not constitute deliberate indifference to a substantial risk of serious harm to [Mr.] R u d d in violation of the Eighth Amendment." (Sept. 10, 2007 Op. at 8.) In the same O p i n i o n , the court also dismissed all of Mr. Rudd's claims against Sheriff Ward in his o f f ic ia l capacity (Sept. 10, 2007 Op. at 4-6), but left intact Mr. Rudd's 1983 constitutional a n d 1985 conspiracy claims for monetary damages against Sheriff Ward in his individual ca p ac ity (Sept. 10, 2007 Op. at 6 n.3).8 amendments. See Danley v. Allen, 540 F.3d 1298, 1306 (11th Cir. 2008) ("Pretrial detainees, who are not protected by the Eighth Amendment, can bring the same claims under the Fourteenth Amendment."); Goebert v. Lee County, 510 F.3d 1312, 1326 (11th Cir. 2007) (analyzing an inmate's claim for deliberate indifference to serious medical needs and holding that "the standards under the Fourteenth Amendment are identical to those under the Eighth"); Marsh v. Butler County, 268 F.3d 1014, 1024 n.5 (11th Cir. 2001) ("We accept our precedents treating the [Eighth and Fourteenth] Amendments as the same in the context of incarceration."), implicitly modified on other grounds by Hope v. Pelzer, 536 U.S. 730 (2002). Given the lack of argument and based on the foregoing authorities, the court finds that, for purposes of this opinion, it is immaterial whether Mr. Rudd at the time of the events at issue was a pretrial detainee or a convicted prisoner. Because during the course of this litigation the parties have referred to Mr. Rudd's claims as Eighth Amendment claims, the court will do the same, but with the recognition that case law involving a pretrial detainee's rights under the Fourteenth Amendment's Due Process Clause applies equally to convicted inmates. The court notes that, at the motion to dismiss stage, Sheriff Ward did not argue for dismissal of these claims, as did the Commission. (See, e.g., Sept. 10, 2007 Op. at 6 n.3.) 8 7 I V . DISCUSSION S o m e of Mr. Rudd's claims survived Defendants' motion to dismiss. At the summary ju d g m e n t juncture, in opposing Defendants' properly-supported motions, Mr. Rudd must s u b m it affidavits or other proper evidence "set[ting] out specific facts showing a genuine iss u e for trial." Fed. R. Civ. P. 56(e)(2); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1 9 8 6 ) (holding that the summary judgment non-movant must "present affirmative evidence in order to defeat a properly supported motion for summary judgment"). As set out below, M r. Rudd has not fulfilled his burden. A. 1983 Claims against Sheriff Ward 1 . Eighth Amendment Claims L ib e ra lly construing Mr. Rudd's claims against Sheriff Ward in his individual c a p a c ity, the court previously found that Mr. Rudd's complaint alleged deliberate in d if f ere n c e under the Eighth Amendment for (1) failure to provide adequate medical care, (2 ) inadequate conditions of confinement in that the Jail was unclean and overcrowded and (3 ) failure to protect Mr. Rudd against an attack by other inmates. (Sept. 10, 2007 Op. at 12.) M o v in g for summary judgment on the Eighth Amendment claims, Sheriff Ward says t h a t he has submitted evidence demonstrating that Mr. Rudd received immediate, full and a d e q u ate treatment both for his staph infection and for the injuries he sustained from the a ss a u lt. (Ward Summ. J. Br. at 7-9.) Sheriff Ward further contends that Mr. Rudd fails to ca rry his summary judgment burden because there is an absence of evidence (1) that Mr. 8 R u d d ' s staph infection was caused by any jail conditions or by the assault (Ward Summ. J. B r. at 3, 4), (2) that the Jail was either unclean or overcrowded (Ward Summ. J. Br. at 11, 1 2 ), or (3) that Sheriff Ward knew or should have known that Mr. Rudd was in danger of b e i n g attacked (Ward Summ. J. Br. at 4). Sheriff Ward also raises qualified immunity as a d ef en se. (Ward Summ. J. Br. at 18-21.) Sheriff Ward, thus, contends that summary ju d g m e n t is due to be entered in his favor. a. Medical Care " D e lib e ra te indifference to a prisoner's serious medical needs violates the Eighth A m e n d m e n t." Danley, 540 F.3d at 1310. There are three components to an Eighth A m e n d m e n t deliberate indifference claim. "[A] plaintiff must show: (1) a serious medical n e e d ; (2) the defendants' deliberate indifference to that need; and (3) causation between that in d iffe re n c e and the plaintiff's injury." Id. A government official's conduct rises to the level o f deliberate indifference (1) when he "knows that an inmate is in serious need of medical c a re , but he fails or refuses to obtain medical treatment for the inmate," (2) when in certain c irc u m sta n c e s there is an intentional delay in medical treatment, or (3) when treatment is s h o w n to be "grossly inadequate" or based on "a decision to take an easier but less e ff ic a c io u s course of treatment." McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (in te rn a l quotation marks omitted). Presuming that Mr. Rudd's injuries from the attack rise to the level of serious medical n e e d s, the court agrees with Sheriff Ward that Mr. Rudd has not submitted any evidence to b a c k up his lone allegation that the medical care he received was inadequate under the Eighth 9 A m e n d m e n t's standard.9 (Compl. 9.) Mr. Rudd confirmed that, after he was attacked, he w a s taken "immediately" to the hospital, that he was hospitalized for "two weeks," and that, u p o n his return to the Jail, he was "regularly" given his prescribed medications. (Pl. Dep. a t 49-52; see also Ward Dep. at 36-37, 39, 42-43; Rowe Aff. 5-8 (delineating the Jail's p o lic ie s on medical care to inmates).) Mr. Rudd has not presented any evidence, and the c o u rt found none in the record, establishing or suggesting that he was denied medical tre a tm e n t or that the medical treatment he received was delayed or was grossly inadequate. C o n seq u en tly, summary judgment is due to be entered in favor of Sheriff Ward on Mr. R u d d 's Eighth Amendment claim alleging inadequate medical care. b. Conditions of the Jail The Eighth Amendment also encompasses prisoner claims that certain conditions of c o n fin e m e n t such as overcrowding, unsanitary facilities and inadequate protection from h a rm against other inmates amount to cruel and unusual punishment. Wilson v. Seiter, 501 U .S . 294, 296 (1991) (overcrowding); Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (sa n itatio n issues); Purcell v. Toombs County, Ga., 400 F.3d 1313, 1320-21 (11th Cir. 2005) (inmate-on-inmate violence). Such claims are subject to analysis under the deliberate in d if f e re n c e standard; however, only those conditions that, from an objective standpoint, In his complaint, Mr. Rudd complains only about the medical attention he received after he was assaulted. (Compl. 9.) He makes no complaint about the medical treatment he received for his staph infection following the January 6, 2005, diagnosis. But, even if such a claim were present, there is, as Sheriff Ward argues, an absence of admissible evidence that the Jail's response to Mr. Rudd's complaint of a fever and the medical treatment he received following the January 6 staph infection diagnosis constituted deliberate indifference to his serious medical needs. 9 10 d e n y inmates "the minimal civilized measure of life's necessities" are "sufficiently serious" to be actionable under the Eighth Amendment, Farmer v. Brennan, 511 U.S. 825, 834 (1994) (in te rn a l quotation marks omitted), as a prisoner has no constitutional guarantee to a " c o m f o rta b le prison[]," Rhodes, 452 U.S. at 349; see also Wilson, 501 U.S. at 298 (observing th a t the "holding in Rhodes turned on the objective component of an Eighth Amendment p r is o n claim"). There also is a subjective component to a deliberate indifference claim, W ils o n , 501 U.S. at 302-03, requiring that the prison official must "know[] of and disregard[] a n excessive risk to inmate health or safety; the official must both be aware of facts from w h i c h the inference could be drawn that a substantial risk of serious harm exists, and he must a ls o draw the inference." Farmer, 511 U.S. at 837; Marsh, 268 F.3d at 1028. It is not e n o u g h to establish that the official should have known of the risk of harm. Farmer, 511 U .S . at 837. Overall, Eighth Amendment claims challenging conditions of confinement, such as th e ones alleged by Mr. Rudd, comprise three elements: "(1) a substantial risk of serious h a rm ; (2) the defendants' deliberate indifference to that risk; and (3) causation." Carter v. G a llo w a y , 352 F.3d 1346, 1349 (11th Cir. 2003). As to causation, the Eleventh Circuit has e x p la i n e d , "The wrong in Eighth Amendment cases is the deliberate indifference to a c o n s titu t io n a lly infirm condition; that wrong must, in turn, have been the proximate cause o f the plaintiffs' injuries." Hale v. Tallapoosa County, 50 F.3d 1579, 1584 (11th Cir. 1995) (in te rn a l quotation marks omitted). 11 H e re , the record is barren of any evidence that the Jail was unclean. To the contrary, th e evidence is plentiful that the Jail was sanitary. The Commission has submitted evidence (1 ) that the policy of the Geneva County Sheriff's Office was that inmates would be housed in humane and sanitary conditions, (2) that inmates were provided cleaning materials each d a y for sanitizing the living areas of their cells under the supervision of a member of the Jail s ta f f, and (3) that all common areas of the Jail were cleaned by trusties every morning. (R o w e Aff. 10.) Although faced with this evidence on summary judgment defeating his claim, Mr. R u d d has not attempted to counter it. He has not identified any particular Jail condition w h ic h he says was unsanitary from which Sheriff Ward could infer that a substantial risk of s e rio u s harm existed.1 0 He has produced no evidence that Sheriff Ward had knowledge that c o n ta m in a te d conditions existed which could result in Mr. Rudd or other inmates contracting a staph infection. Nor is there any evidence that there were any prior incidents of staph in f e ctio n s at the Jail. The lone statement from a cell mate that Mr. Rudd "contracted staph in f e c tio n due to the deplorable conditions of the Geneva County Jail" (Nunn Aff. at 1 (Defs. E x . K)) is conclusory and wholly insufficient to carry Mr. Rudd's summary judgment burden o n his Eighth Amendment claim challenging the cleanliness of the conditions of his c o n f in e m e n t. See Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) ("mere conclusions a n d unsupported factual allegations are legally insufficient to defeat a summary judgment 10 As to Mr. Rudd's contention that he slept by "a solid steel rusty wall," see the court's discussion on causation, infra p. 14. 12 m o tio n "). Consequently, Mr. Rudd's claim that the conditions of the Jail were so unsanitary a s to violate the Eighth Amendment, as well as his related contention that his staph infection w as caused by unclean Jail conditions, cannot survive Sheriff Ward's motion for summary ju d g m e n t. R e g a rd in g his claim of overcrowding, Mr. Rudd complains that he and two other in m a te s had to sleep on a bed on the floor, that the number of inmates exceeded the number o f permanent beds, and that there was not much room in his cell to "walk around." (Pl. Dep. a t 61; see also Pl. Dep. at 44.) Sheriff Ward makes two arguments in support of summary ju d g m e n t. First, he contends that evidence of overcrowding, without more, is insufficient to demonstrate an Eighth Amendment claim, but that, in any event, there is no evidence that th e Jail was overcrowded. (Ward Summ. J. Br. at 12.) Second, Sheriff Ward focuses on the c a u s a tio n element of Mr. Rudd's Eighth Amendment overcrowding claim. (Ward Summ. J . Br. at 3-4.) It is true that around the time that Mr. Rudd was incarcerated, there were a p p ro x im a te ly seven more inmates than permanent "bunks," which appears to have resulted in some inmates sleeping on beds on the floor. (See Ward Dep. at 48; Jail Capacity Log (D e f s. Ex. C).) Sheriff Ward is correct, though, that this fact, in and of itself, does not make o u t an Eighth Amendment cruel and unusual punishment claim. In Rhodes, involving an E ig h th Amendment challenge to a prison's practice of double celling inmates, the Supreme C o u rt rejected as insufficient to rise to the level of cruel and unusual punishment the fact, 13 a m o n g others, that the state prison housed 38 percent more inmates than its "designed c a p ac ity." 452 U.S. at 348 (internal quotation marks omitted). The Court held that such a " g e n e ra l consideration[] fall[s] far short in . . . proving cruel and unusual punishment," a b se n t evidence that double celling "inflict[ed] unnecessary or wanton pain or [was] grossly d is p ro p o rtio n a te to the severity of crimes warranting imprisonment." Id. at 349. Sheriff W ard , though, says that there is an absence of evidence that the inmate occupancy in Mr. R u d d 's cell caused any of the pain or harm of which Mr. Rudd complains. (Ward Summ. J. B r. at 3-4.) The court agrees. M r. Rudd complains, for instance, that his bed was next to "a solid steel rusty wall." (P l. Dep. at 54.) It is not clear, but it may be that Mr. Rudd contends that, but for the o v e rc ro w d in g , he would not have had to sleep next to this wall, and that the proximity of his b e d to a rusty wall caused his staph infection.1 1 However, as Sheriff Ward aptly points out, the only evidence upon which Mr. Rudd relies to establish causation is hearsay. (Ward S u m m . J. Br. at 3-4.) That evidence is testimony from Mr. Rudd that his treating physician to ld him that he contracted a staph infection from the Jail (Pl. Dep. at 54) and is precisely the typ e of rank hearsay which cannot be considered at the summary judgment stage. See M a c u b a v. DeBoer, 193 F.3d 1316, 1324-25 (11th Cir. 1999). Additionally, in his complaint, M r. Rudd alleges that overcrowding was a contributing factor leading to his cell mates Ascertaining from the record what harms Mr. Rudd says he suffered from alleged overcrowded conditions has not been an easy task. For the sake of thoroughness, the court will address this possible argument. 11 14 attac k ing and injuring him, (Compl. 22), but again there is no evidence which supports that c o n te n tio n . To the extent that during his deposition Mr. Rudd expressed his belief that the a ss a u lt was related to an increase in the Jail's inmate population,1 2 and it is dubious that his d e p o sitio n contains such testimony, his "naked assertion" falls woefully short of satisfying h is evidentiary burden on the issue of proximate cause. Doe v. Sullivan County, Tenn., 956 F .2 d 545, 550 (6th Cir. 1992) (To demonstrate proximate cause, "more is required than [a] p la in tif f 's naked assertion that the assault would not have occurred but for the offensive c o n d itio n s ." ). Naked assertions and inadmissible hearsay are all that Mr. Rudd has provided o n the issue of causation. Accordingly, the court finds that Mr. Rudd cannot demonstrate th a t his injuries were proximately caused by what he contends was an excessive number of in m a tes in his cell. See Hale, 50 F.3d at 1584 ("The wrong in Eighth Amendment cases is th e deliberate indifference to a constitutionally infirm condition; that wrong must, in turn, h a v e been the proximate cause of the plaintiffs' injuries." (internal quotation marks o m i tt e d ) ) . Similarly, Mr. Rudd fails to raise a genuine issue of material fact that the number of in m a te s in his cell was "grossly disproportionate to the severity of crimes warranting im p ris o n m e n t." Rhodes, 452 U.S. at 348. While Mr. Rudd's sleeping situation may not have It is worth noting that Sheriff Ward testified that, in his opinion backed by fourteen years of experience as the sheriff, the Jail was neither overcrowded nor unsafe during the time that Mr. Rudd was incarcerated. (Ward Dep. at 46, 48, 55-56.) He said that so long as the Jail's capacity did not exceed 55 inmates, he believed that the inmates were secure from escape and safe from harm. (Ward Dep. at 55-56.) When inmate capacity reached somewhere between 50 and 55 inmates, however, Sheriff Ward said he began transferring inmates to other jails. (Ward Dep. at 56.) 12 15 b e e n ideal, "ideal" is not the Eighth Amendment standard. See Rhodes, 452 U.S. at 349 (" [ T ]h e Constitution does not mandate comfortable prisons."). In short, there is no inference e sta b lis h in g or suggesting that these conditions were "inhumane." Farmer, 511 U.S. at 832. F in a lly, turning to Mr. Rudd's claim that Sheriff Ward violated the Eighth A m e n d m e n t by his deliberate indifference to Mr. Rudd's safety, Sheriff Ward argues that th e re is an absence of evidence that he was on notice that Mr. Rudd was in danger of being a tta c k e d and that, therefore, Mr. Rudd cannot prove deliberate indifference. (Ward Summ. J . Br. at 4.) The court agrees. To demonstrate notice, Mr. Rudd relies on his testimony about a letter, allegedly d ra fte d by his assailants documenting their intent to attack him, which Mr. Rudd says he s h o w e d to Sheriff Ward. (Pl. Dep. at 36.) This letter, however, is not in evidence, and Mr. R u d d 's testimony as to the contents of the letter presents multiple hearsay problems. See F ed . R. Evid. 801(c); (Ward Summ. J. Br. at 16 (arguing hearsay).) The content of the letter, o ffe re d only through Mr. Rudd's testimony, is inadmissible hearsay and cannot be used to d em o n strat e that Sheriff Ward had knowledge of a substantial risk of serious harm to Mr. R u d d .1 3 Macuba, 193 F.3d at 1324-25. Mr. Rudd also alleges in his complaint that Sheriff W a rd was "aware of fights occurring in cells" (Compl. 18), but there is no evidence that The court notes that, even if such a letter were in evidence, it is doubtful that it would suffice to show deliberate indifference. Prater v. Dahm, 89 F.3d 538, 541 (8th Cir. 1996) ("threats between inmates are common and do not, under all circumstances, serve to impute actual knowledge of a substantial risk of harm"). Moreover, as the testimony bore out in at least one case, it is common for inmates to allege threats in an effort to "arrange a room move." Pagels v. Morrison, 335 F.3d 736, 741 (8th Cir. 2003). 13 16 th e re was a single past incident of inmate fighting whatsoever. (See generally Ward Dep.; s e e also Adkison Dep. at 24-25.) Hence, missing in this case is the type of evidence legally s u ffic ie n t to put a prison official on notice that an inmate is subject to a substantial risk of s e rio u s harm at the hands of his fellow inmates. See, e.g., Purcell, 400 F.3d at 1320 ("an e x c es s iv e risk of inmate-on-inmate violence at a jail creates a substantial risk of serious h a rm ; `occasional, isolated attacks by one prisoner on another may not constitute cruel and u n u su a l punishment, [but] confinement in a prison where violence and terror reign is ac tio n ab le'" (internal quotations omitted)). M r. Rudd, therefore, is left with his testimony that he "went to see" Sheriff Ward, that h e showed him a letter, and that he requested to be moved to a different cell based upon a p e rc e iv e d harm, but that Sheriff Ward declined Mr. Rudd's request based (1) on the u n a v a ila b ility of space and (2) on his personal belief that the offending inmates were not v iolen t and would "not hurt [him]." (Pl. Dep. at 36.) The court agrees with Sheriff Ward th a t this evidence also falls short of delineating "specific facts" needed to "show[] a genuine iss u e for trial." Fed. R. Civ. P. 56(e)(2); (see Ward Summ. J. Br. at 17-18.) Although arguably it can be implied from Sheriff Ward's response that Mr. Rudd re q u e ste d to be moved to a different cell based upon a harm Mr. Rudd perceived,1 4 there is n o admissible evidence as to what details, if any, Mr. Rudd conveyed to Sheriff Ward about w h a t that harm entailed. The admissible testimony comprises five lines on a single page of 14 There is no testimony as to what Mr. Rudd told Sheriff Ward. 17 a deposition transcript. (Pl. Dep. at 36, lines 11-16.) Because that testimony is undeveloped, a ll details are lacking. There are, therefore, no facts from which it can be determined w h e th e r Mr. Rudd communicated to Sheriff Ward facts from which Sheriff Ward could draw a n inference that the harm was serious and that the risk of that harm was substantial. F a r m e r, 511 U.S. at 837. But, even if there were facts from which that inference could be m a d e , Mr. Rudd has not provided any evidence that Sheriff Ward drew that inference. Id. In d e e d , the facts, limited as they may be, reveal that Sheriff Ward did not, as it was Sheriff W a rd 's perception that, based on his knowledge of the offending cell mates' nonviolent h is to rie s, they did not pose any harm to Mr. Rudd. Mr. Rudd has not presented any evidence th a t Sheriff Ward had been exposed to any information, from another source, which would c o u n te rm in e his perception or from which it could be inferred that he was "merely refus[ing] to verify underlying facts that he strongly suspected to be true." Id. at 843 n.8. Accordingly, th e court finds that Mr. Rudd fails to raise a genuine issue of material fact on the issue of d e lib e ra te indifference, an essential element of his case on which he has the burden of proof. S h e rif f Ward, therefore, is entitled to summary judgment on Mr. Rudd's Eighth Amendment c laim that Sheriff Ward's failure to move him to a different cell amounts to a deliberately in d if f e re n t failure to protect his safety.1 5 The court notes that the complaint alleges albeit in very general terms that Mr. Rudd's injuries resulted from an "official policy" for which Sheriff Ward should be held liable. (Compl. 10); see West v. Tillman, 496 F.3d 1321, 1332 (11th Cir. 2007) (analyzing 1983 claim against Alabama sheriff that the absence of certain policies was unconstitutional); Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (A plaintiff may establish 1983 supervisory liability "where the supervisor's improper `custom or policy . . . result[s] in deliberate indifference to constitutional rights.'"). The record does not raise a genuine issue of material fact under a custom or policy theory of liability. Namely, Sheriff Ward 15 18 2 . Other Claims Against Sheriff Ward M r. Rudd also brings claims against Sheriff Ward in his individual capacity pursuant to 42 U.S.C. 1983, alleging violations of rights guaranteed by the Fourth, Fifth, Fourteenth a n d Seventeenth Amendments. Sheriff Ward argues that Mr. Rudd "has not alleged a valid ca u se of action under these Amendments." (Ward Summ. J. Br. at 21-23.) The court's reasons, set out in its prior opinion, for dismissing the 1983 Fourth, F if th , Fourteenth and Seventeenth Amendment claims against the Commission are relevant a s to Sheriff Ward. (Sept. 10, 2007 Op. at 7.) Presumably, Mr. Rudd relies on the Fifth A m e n d m e n t's Due Process Clause, but that clause "applies only to the federal government." H o o p e r v. City of Montgomery, 482 F. Supp. 2d 1330, 1335 (M.D. Ala. 2007) (internal q u o tatio n marks omitted). And there is no evidence implicating the Fourth or Seventeenth A m e n d m e n t s. (Sept. 10, 2007 Op. at 7.) While arguably the Fourteenth Amendment applies, s e e supra footnote 7, any Fourteenth Amendment claim fails for the identical reasons as the E ig h th Amendment claims.1 6 Accordingly, the court finds that there are no genuine issues has introduced evidence of the Jail's comprehensive policies for rendering medical care to inmates, for protecting inmates from harm, and for maintaining humane and sanitary conditions in the Jail. (Rove Aff. 4-11; see also Ward Summ. J. Br. at 9, 11-12.) Mr. Rudd has not challenged any of the policies (or the lack of one) as unconstitutional, and it is difficult, if not impossible, to predict how any challenge could be made. In any event, "[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment." Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995); Bowden v. Wal-Mart Stores, Inc., 124 F. Supp. 2d 1228, 1236 (M.D. Ala. 2000). The court also agrees with Sheriff Ward that, although Mr. Rudd's complaint contains a cursory reference to 42 U.S.C. 1985, summary judgment is appropriate on any 1985 claim because Mr. Rudd has presented no evidence of an actionable wrong under this conspiracy statute. (Ward Summ. J. Br. at 21.) 16 19 o f material fact for trial and that Sheriff Ward is entitled to judgment as a matter of law on th e s e claims.1 7 B . 1983 Claims against the Commission O n ly the Eighth Amendment claims remain against the Commission. Urging the court to enter summary judgment in its favor on these claims, the Commission emphasizes that its d u ties with regard to the Geneva County Jail are to build, maintain and fund it, not to operate it, and that "the undisputed evidence shows that [it] fulfilled th[ese] dut[ies]" in a c o n stitu tio n a l manner. (Commission Summ. J. Br. at 9 (Doc. # 40).) The Commission c o n te n d s that, to the extent that Mr. Rudd's Eighth Amendment claims are based on alleged d e f i c ie n c i e s in the operation of the Jail or the actions of Sheriff Ward or his employees, those c la im s cannot survive summary judgment. (Commission Summ. J. Br. at 12.) In short, the C o m m is s io n contends that there is no evidence that it is responsible for any of the alleged u n c o n stitu tio n a l mistreatment Mr. Rudd says he endured while incarcerated at the Geneva C o u n t y Jail and, thus, it cannot be held liable for any Eighth Amendment violation. (C o m m issio n Summ. J. Br. at 9-10.) The Eighth Amendment proscribes cruel and unusual punishment, and the claims that c a n be brought under the cruel and unusual punishment clause are varied. Danley, 540 F.3d a t 1306. Hence, it is important preliminarily to define the Eighth Amendment claims against th e Commission. A local government, such as the Commission, "can be directly responsible Because Mr. Rudd has not demonstrated that his constitutional rights were violated, his 1983 claims fail on the merits. It, therefore, is unnecessary for Sheriff Ward to rely on, or for the court to address, the defense of qualified immunity. 17 20 f o r a constitutional violation due to its acts or omissions." Marsh, 268 F.3d at 1027. H o w ev er, for liability to attach "a plaintiff must show: (1) that his constitutional rights were v io la te d ; (2) that the [county] had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation." McDowell v . Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). Important in the present context, 1983 lia b ility can attach to the Commission "only for acts for which [it] is actually responsible," M a r s h , 268 F.3d at 1027, a point pressed by the Commission. As the court discussed in its September 10, 2007 Opinion, it is well established that " A lab a m a counties have no responsibility for daily operation of county jails and no authority to dictate how jails are run." Id.; see also Turquitt v. Jefferson County, Ala., 137 F.3d 1285, 1 2 8 8 -9 1 (11th Cir. 1998). Rather, an Alabama county commission's role vis-a-vis its county jail is limited to funding, "erecting and maintaining" it. Marsh, 268 F.3d at 1027; see also A la . Code 11-14-10 ("Each county within the state shall be required to maintain a jail w ith in their county."); Ala. Code 11-14-13 (county is responsible for building and m a in ta in in g a jail "of sufficient size and strength"). It is the sheriff who has authority over th e inmates, the jail and its employees, and "[t]he authority the Sheriff has over the Jail is to ta lly independent of the county commission." Marsh, 268 F.3d at 1028; see also McMillian v . Monroe County, Ala., 520 U.S. 781, 788 (1997) (holding that an Alabama sheriff " re p re s e n ts the State of Alabama and is therefore not a county policymaker"). In light of the foregoing principles, the Commission "will have violated [Mr. Rudd's] E ig h th Amendment rights if its failure to maintain the Jail constituted deliberate indifference 21 t o a substantial risk of serious harm to [Mr. Rudd]." Marsh, 268 F.3d at 1027. In other w o rd s , "a county might be liable when the physical conditions of the jail have deteriorated a n d pose a serious threat to the safety of inmates and when those conditions have caused the in ju ry to the inmates." Id. at 1027 n.7. For the reasons to follow, the court finds that there is nothing in the record which raises a genuine issue of material fact as to the Commission's lia b ility. The evidence confirms that the Commission exercised no authority concerning the p ro m u lg a tio n or enforcement of policies for the daily operation of the Geneva County Jail. (A d k is o n Dep. at 20-21, 24-25.1 8 ) There also is undisputed evidence that the Commission d id not contribute in any way to decisions regarding Mr. Rudd or any other inmate's tre a tm e n t at the Jail. (Adkison Dep. at 16-17.) Rather, consistent with the controlling legal a u th o ritie s discussed above, the Commission's duties concerning the Jail were limited to f u n d in g and maintenance. (Adkison Dep. at 16.) In general terms, the evidence reveals that the Commission fulfilled those duties. The C o m m is s io n established an annual budget for the Jail, and there is no evidence that at any tim e relevant to this lawsuit the funding for hiring, training, maintenance and general o p e ra tio n s was inadequate. (See Ward Dep. at 9-10; Adkison Dep. at 9, 13.) While costs to o p e ra te the Jail sometimes exceeded the allotted budget, the Commission readily provided ad d ition al funding upon Sheriff Ward's request. (Ward Dep. at 9; Adkison Dep. at 13.) The Honorable Harry Adkison, by his elected position as probate judge, was the chairman of the Commission during all times relevant to this lawsuit. (Adkison Dep. at 6.) 18 22 M o reo v er, there is ample evidence that improvements and maintenance at the Jail were o n g o in g during the decade preceding Mr. Rudd's incarceration; among other things, p lu m b i n g , storage facilities and cells were upgraded. (Adkison Dep. at 14-15.) As e la b o ra te d upon in the preceding subsection, there is no evidence that the Jail's structure was d ila p id a te d or that the physical conditions of the Jail had deteriorated, as arguably claimed b y Mr. Rudd in his complaint. In specific terms, the only other potential Eighth Amendment claim against the C o m m is s io n which can be gleaned from the record arises from Mr. Rudd's complaint of " o v e rc ro w d in g ." (Pl. Dep. at 41.) Arguably, Mr. Rudd makes this assertion to support a c la im that the Commission failed to build a jail "of sufficient size." Ala. Code 11-14-13; M a r s h , 268 F.2d at 1027. But, in rejecting Mr. Rudd's claims against Sheriff Ward, d is c u ss e d supra, the court found that Mr. Rudd failed to raise a genuine issue of material fact th a t the overcrowding about which he complains constitutes an Eighth Amendment violation; h e n c e , he cannot establish an essential element of his claim against the Commission, i.e., " th a t his constitutional rights were violated." McDowell, 392 F.3d at 1289. B a se d on the foregoing, the court finds "that there is no genuine issue as to any m aterial fact and that [the Commission] is entitled to a judgment as a matter of law" on Mr. R u d d 's Eighth Amendment claims against it. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 323. V . CONCLUSION In sum, the court finds that Defendants have satisfied their initial burden on summary ju d g m e n t by demonstrating the absence of a genuine issue of material fact for trial, but that 23 M r. Rudd has not sustained his burden by submitting evidence which demonstrates a genuine issue of material fact for trial. See Celotex Corp., 477 U.S. at 322-323. Having failed to " p re se n t affirmative evidence in order to defeat [the] properly supported motion[s] for s u m m a ry judgment," Anderson, 477 U.S. at 257, the court finds that summary judgment is d u e to be granted in Defendants' favor. Accordingly, it is ORDERED that the motions for summary judgment filed by D ef en d an ts Geneva County Commission and Sheriff Greg Ward (Docs. # 39, 41) are GRANTED. A judgment in accordance with this Memorandum Opinion and Order shall be entered s e p a ra te ly . D O N E this 18th day of December, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE 24

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